On Monday afternoon, a Florida jury added twenty-five million dollars in punitive damages to the hundred and fifteen million dollars it had awarded Hulk Hogan, on Friday, in his invasion-of-privacy case against Gawker Media. Hogan sued Gawker for posting portions of a sex tape it received from an anonymous sender. It’s a shocking amount, not least because it’s forty million dollars more than Hogan (whose real name is Terry Bollea) had demanded.
Verdicts of this size can pose an existential risk to a media company. Gawker has reported that it earned forty-four million dollars in revenue in 2014, and in January Gawker’s owner, Nick Denton, announced that he had sold a portion of his company to investors in order to fund this case. Gawker will certainly appeal the verdict, as it should (after it pays a bond of up to fifty million dollars), arguing that the jury was unreasonable in finding that Hogan’s right to privacy outweighed Gawker’s right to publish the material, which it believed was of public interest. The publication of a videotape of consensual sex between adults is not the most appealing place to plant a First Amendment flag. But it is worth considering the possible effects on publishers if a judgment of this magnitude is allowed to stand.
Violations of privacy, like other forms of personal injury, are generally an issue of state law. But because state courts are not permitted to impose penalties that would violate the U.S. Constitution, the First Amendment protects the publication of true facts about public figures, unless such facts would be highly offensive to a reasonable person and are not of legitimate concern to the public. In this case, there was evidence both that Hogan was accustomed to publicly discussing details of his sex life, and that he himself considered his sex life, and the existence of the videotape, if not its contents, of legitimate public interest. Many established news organizations, including this one (I am _The New Yorker’_s general counsel), would not publish a video of this kind, but it is important to separate what might be considered tasteless or even mean-spirited conduct from conduct that violates the law.
In September, 2012, Gawker received an anonymous package containing a DVD that appeared to show Hogan having sex with a woman named Heather Clem. At the time, she was married to Bubba Clem, known as Bubba the Love Sponge, a radio shock jock and Hogan’s best friend. Bubba Clem had apparently encouraged his wife to sleep with Hogan on several prior occasions, and there was evidence that he had set up the camera that captured this tryst. The footage that Gawker received was a half hour long. Gawker editors cut down the grainy, black-and-white footage to a minute and forty seconds, which they published on their Web site early the next month. Only nine seconds of the portion used showed actual sex. The rest showed awkward conversation between Hogan and Heather Clem.
Both Hogan and Heather Clem testified that they did not know they were being filmed. Bubba Clem did not appear at trial, having made clear that he would assert his Fifth Amendment right not to incriminate himself. He had previously given contradictory statements about whether Hogan knew he was being filmed, and reportedly feared perjury charges if he testified at the Gawker trial. Hogan dropped him from the lawsuit in 2012, after Bubba Clem apologized to Hogan on air and paid a settlement of five thousand dollars.
Hogan testified that he felt “completely humiliated” by the publication of the tape, but, as he also acknowledged, he was not a stranger to explicit and wide-ranging discussions of his sex life. He confirmed at trial that he talked, on various radio shows, about the size of his penis and the number of women he slept with. When someone on “The Howard Stern Show” commented that he looked tired, he responded, “I should be tired—I’ve been banging my new chick all the time.” Shortly after Gawker released the footage, Hogan discussed it on “Howard Stern” and on a TMZ television show. When TMZ asked Hogan who the woman might be, he said, “I don’t even remember people’s names last weekend that I met—I meet so many people—much less girls five or six or seven years ago.”
By publicly discussing his sexual partners, Hogan did not grant the media unlimited access to his private life, but he did indicate that the story of the sex tape and its contents (if not the actual sex tape itself) was of public interest. Hogan claimed that he made those statements while in character as “Hulk Hogan” and that they did not reflect his true identity as Terry Bollea. “I was totally Hulk Hogan, because I wasn’t at home in my private house,” he said of the TMZ interview. Given that Hogan was also not at home when he was in court, and that (as Denton noted on Gawker yesterday) he appeared there every day wearing his trademark bandana, in what he presumably thought was a more tasteful black, it seems more logical to assume that his primary identity is that of Hulk Hogan.
But was the video newsworthy? Hogan’s lawyers argued that it had no news value and that Gawker posted it only to generate traffic to its site. Some of the testimony by Gawker witnesses did little to dispel that argument. Denton was cross-examined about his statement to the Washington Post that Gawker doesn’t “seek to do good.” The editor A. J. Daulerio testified that there was little news value in images of Hogan’s penis. Even worse, Hogan’s lawyers played a videotaped deposition in which Daulerio was asked what kind of sex tapes he wouldn’t publish. He stated that he would draw the line at children “under four” years old. The jury reportedly gasped. (Daulerio testified that he had been joking.) Then there was the language that accompanied the video in Gawker’s post. “Because the internet has made it easier for all of us to be shameless voyeurs and deviants,” it declared, “we love to watch famous people have sex.”
These facts, along with Hogan’s court testimony, were enough for the jury to find that the news value did not outweigh Hogan’s privacy rights. But, as Gawker’s lawyer argued in his closing statement (The New Yorker is represented by the same firm that represents Gawker), the First Amendment must take a broad view of “newsworthiness” to have any effect. It is not the obvious stories or popular speech but rather the unpopular or shocking speech that requires constitutional protection. And while protecting the right to publish a celebrity sex tape may not be as significant as protecting the right to burn the American flag (in the example offered by Gawker’s lawyer), Hogan’s own voluntary public discussion of his sex life appears to be an acknowledgment that it was at least of some interest to the public, in both Hogan’s estimation and that of news outlets that interviewed him. “Newsworthy” is not the same as high-minded, and while many publications would not choose to publish a sex tape, the term can conceivably protect one.
Did Gawker have to show the video, though? Hogan’s lawyers suggested that a written description would have been sufficient and protected. Other outlets, which also received the tape but declined to publish it, apparently agreed with them. But there are a couple of concerns with this argument. First, judicial edicts regarding whether video is appropriate in a particular case may encroach on editorial judgment. (Would eight seconds have been O.K.? What about three? What if they were blurred, but you could still tell what was going on?) Second, on the Internet, at least, video is becoming the community standard of proof. The power of video to capture attention and motivate people, as with the recent videos of police shootings of unarmed citizens, or violence at Donald Trump rallies, or domestic violence in hotel elevators (as Nicholas Schmidle reported in this magazine), is beyond dispute.
We have seen many videos that are more newsworthy than this one, and it’s even possible to imagine a more newsworthy sex tape. The reported sex tape of John Edwards and Rielle Hunter could have been considered newsworthy, had it been released, and had the former Presidential candidate denied the affair. If the Hogan verdict stands, would a media outlet that published that video be at risk of being put out of business? Would we be worse off if no one were willing to publish such a video? You don’t have to be a First Amendment absolutist, in favor of the unlimited publication of sex tapes, to believe that we would.
